Judgment:
Rajiv Shakdher, J.
CM No. 6493/2008
1. An application for bringing on record the Legal Representatives of appellant No. 2 Smt. Maya Devi has been filed today in Court. The application is taken on record. The Registry is directed to number the same.
2. In the application it is averred that Appellant No. 2 Smt. Maya Devi expired on 16.8.2002. In Paragraph 3 the names and the relationship of the Legal Representatives with late Maya Devi has been detailed out. The application is also accompanied by attested photocopy of the death certificate issued by the office of the Health Officer, Municipal Corporation, Nagar Nigam, Ghaziabad. The date of death of the Appellant is indicated as 16.8.2002. I am informed by the learned Counsel for the Appellant, Mr.O.P.Mannie that the name appearing in the death certificate i.e Maya Devi Singhal is the same individual whose name appears as Appellant No. 2 in the Appeal pending before this Court.
3. For reasons stated in the application, I allow the application. The Legal Representatives of Appellant No. 2 be brought on record. The amended memo of parties filed by the Appellant is taken on record.
FAO No. 472/1999
4. This is an Appeal under Section 173 of Motor Vehicles Act, 1988 (hereinafter referred to as the 'Act') against the judgment dated 22.7.1999 passed by the Motor Accident Claims Tribunal, Karkardooma, Shahadra, Delhi (hereinafter referred to as the 'Tribunal') in Petition No. R1/26/1990.
5. In the impugned judgment the Tribunal has awarded a compensation of Rs. 96,000/- as against a sum of Rs. 4.00 lacs claimed by the Appellants.
6. The Appellant being aggrieved by the said award has preferred the present Appeal. The brief facts necessary for disposal of Appeal are set out hereinbelow:
7. The Appellant No. 1 is the father of the deceased Pradeep Kumar. Smt Maya Devi since has since passed away during the pendency of the Appeal on 16.8.2002. By an order passed today on an application moved by Smt. Maya Devi's Legal Representatives, her Legal Representatives have been substituted and joined as Appellant No. 2(a) to 2 (c) to this Appeal.
8. The Appellant No. 1's son, Mr.Pradeep Kumar met with an accident on 17.1.1990 at about 12.30 pm. At the time of accident, Mr. Pardeep Kumar was driving a two wheeler scooter with his step brother one; Mr.Satish Kumar as a pillion rider. The accident occurred at Vikas Marg, Near Rainy Well No. 7, Shakarpur when, it was hit by a utility vehicle i.e DCM Toyota bearing registration No. UGU-8087 (hereinafter referred to in short as the 'offending vehicle'). Mr. Pardeep Kumar succumbed to his injuries on 17.1.1990 itself and while, his step brother Satish Kumar though injured survived the accident.
9. The Appellants being aggrieved by the same instituted a petition before the Tribunal on 18.4.1990. In the said petition the driver i.e Respondent No. 1; the owner of the vehicle i.e Respondent No. 4 M/s Doors Transport Pvt. Ltd. and the Director of the Respondent No. 2 company were arrayed as parties. Respondent No. 3 being the insurer of the offending vehicle was also imp leaded as a party to the said action.
10. The point to be noted is that despite the fact that the Respondent No. 2 i.e. The owner of the offending vehicle was served notice of the petition filed before the Tribunal on 20.4.1992, the appellant slept over his rights and imp leaded respondent No. 3 as a party to the proceedings only on 13.1.1999. This is necessary for the reason that Mr. Mannie, Learned Counsel for Appellant submitted that the period for which interest has been granted is far less than what it ought to have been awarded. I shall discuss this aspect a little later in my judgment. Suffice it to say at this stage, that the impleadment of Respondent No. 3 was delayed by the appellants when, at least after 1992, for which there is no reasonable Explanationn, it had every opportunity to know who was the insurer.
11. It transpires from perusal of the record that the Respondent No. 1 did not file any Written Statement. As noted in the impugned judgment, Respondent No. 2 had filed a Written Statement which was adopted by Respondent No. 4. The Respondent No. 3, however, had filed a separate Written Statement in which various objections to the claims made by the Appellants have been taken. A summary of the objection taken before the Tribunal has been recorded in para 6 of the impugned judgment.
12. Upon completion of the pleadings, the Tribunal struck the following issues:
1. Whether deceased Pardeep Kumar died and injured Satish Kumar sustained injuries due to rash and negligent driving of DCM toyota No. UGU-8087 by R1?
2. Whether the petitioners are entitled to any amount as compensation and if so, to what amount and from whom?
3. Relief.
13. Thereafter, the matter was put to trial. Upon completion of trial on 26.5.1999, the Tribunal proceeded to decide the matter. A judgment was delivered on 22.07.1999. As stated hereinabove, aggrieved by the said judgment, an appeal under Section 173 of the Act has been preferred to this Court.
14. In the impugned judgment while deciding the first issue as to whether Mr. Pardeep Kumar succumbed to his injuries on account of rash and negligent driving of the offending vehicle by Respondent No. 1 the Tribunal came to the conclusion that Respondent No. 1 was driving the offending vehicle at the relevant point of time, which, resulted in the death of Mr. Pardeep Kumar. The Tribunal has recorded its findings and conclusion in para No. 11 of the impugned judgment. The relevant portion reads as follows:
11. PW4 Satish Kumar has reiterated the facts as mentioned in para No. 2 of the judgment. It was he on whose statement the FIR Ex.PW3/A was registered. This witness was cross examined at length on behalf of Respondent No. 2 & 4. However, learned Counsel for R2 & R4 was unable to bring any material on record to discard the testimony. Statement of this witness finds sufficient corroboration from the FIR Ex.PW3/A. R1, the driver was the best person to explain the circumstances leading to accident. He has not appeared. It was for him to controvert the manner of accident. An adverse inference shall have to be drawn against him. This issue is decided in favor of the petitioners and against the respondents.
15. The aforesaid finding of the Tribunal is not disputed before me. Even otherwise, I concur with the view of the Tribunal on this issue based on the evidence placed before it.
16. As regards issue No. 2, i.e. on the aspect of compensation, the Tribunal has noted that there was no clear evidence that the deceased Mr. Pardeep Kumar was earning a tution fee of Rs. 1,200/- pm, as averred in the petition. The Tribunal proceeded to hold that in view of absence of any corroborative evidence, it had no choice, but to take into account the minimum wages which a metriculate could earn under the Minimum Wages Act. The Tribunal pegged minimum wages as Rs. 1031/- per month and after taking into account the future enhancement in income and the average of the two, it came to the conclusion a possible figure of Rs. 1,546/- per month. From this, the Tribunal deducted a sum of 50 per cent on the premise that the deceased would spend the said amount towards his personal expenses. Based on the above, the Tribunal concluded that the total loss of compensation of dependency of the parents would be Rs. 773.25/- a month. Keeping in view the age of appellant No. 1 i.e. the father whose, on the date of the accident was around 51-52 years, it was thought proper that a multiplier of nine (9) would result in a fair and just compensation.
17. The Tribunal thus, came to the conclusion that the compensation for the loss of dependency should be Rs. 83,511/- (i.e. Rs. 773.25 x 12 x 9 ). Apart from the above, the Tribunal has also granted compensation under other heads. The details of which are as follows:
I. For loss of dependency Rs. 83,511/-II. For love & affection Rs. 10,000/-III. For funeral expenses Rs. 02,000/-Total compensation Rs. 95,511/-awarded by the Tribunal (Rounded off to Rs. 96,000/-)
18. Mr. Mannie, Learned Counsel for Appellant has assailed the impugned judgment on the following four grounds:
i- the personal expenses ought to have been restricted to 1/3rd as against 1/2. For this purpose, reliance has been placed on the judgment of Supreme Court in the case of Fakeerappa and Anr. v. Karnataka Cement Pipe Factory and Ors. reported at : (2004)2SCC473 and another judgment of Supreme Court in the matter entitled Gyanchand Jain and Ors. v. Parmanand reported at (2003) ACC 149 ;
ii- the Tribunal ought to have applied a multiplier of 11 as against 9 in calculating the total loss of compensation under head 'loss of dependency'. In this regard, Mr. Mannie, has relied upon the two judgments of Supreme Court in the matter entitled Supe Dei and Ors. v. National Insurance Co Ltd and Anr. reported at and another judgment entitled Kanhaiyalal Kataria and Ors. v. Mukul Chaturvedi and Ors. reported at 2007 ACJ 1972 . The basic thrust of Mr. Mannie's submission is that if the Second Schedule appended to the Act is applied; keeping in mind the principle that the multiplier is determined by taking into account the age of the deceased or claimant's/dependent's age, whichever is higher, then, going by the age of the Appellant number 1, i.e. father who was 51-52 years at the time of the accident the Tribunal ought to have applied the multiplier of 11 as against 9 in determining the loss of dependency.
iii- the third submission of Mr. Mannie is that, under the head of loss of love and affection, the Tribunal has awarded a sum of Rs. 10,000/-. It is the submission of Mr. Mannie that this Court in other decisions has granted a much higher compensation under said head. For this purpose, Mr. Mannie has relied upon the judgment of this Court entitled Daya Arora and Ors. v. Kapur Singh and Anr. reported at IV (2005) ACC 313.
iv- the fourth and the last submission of Mr. Mannie was with regard to the period for which the interest has been granted by the Tribunal. In the judgment under appeal, the Tribunal has granted interest at the rate of 12 per cent for the period of three years with effect from 1.7.1996.
19. As against this in rebuttal, Mr. Tyagi, Learned Counsel for Respondent No. 3 has submitted that since the deceased was a unmarried person and young in age, he would have ordinarily spent a fair share of his income on himself and thereforee, the Tribunal's view that one half of the monthly income could be deducted towards personal expenses of the deceased, is a fair view and deserves acceptance.
20. In respect of the submissions on behalf of the Appellant with respect to application of an appropriate multiplier in determining the compensation for loss of dependency, Mr. Tyagi's submission is that since the Tribunal has taken into account a future increase in the income of the deceased while, arriving at an average monthly income of the deceased, the multiplier of nine applied in the instant case is appropriate one. Furthermore, Mr. Tyagi, has relied upon the judgment of Supreme Court entitled Sarla Dixit and Anr. v. Balwant Yadav and Ors. reported at : (1993)IILLJ664SC , in which in turn there is a reference to another judgment of Supreme Court in the case entitled General Manager, Kerala State Road Transport Corpn v. Susamma Thomas reported at : AIR1994SC1631 . The thrust of Mr. Tyagi's submission is that even though, the Second Schedule to the Act was introduced on 14.11.1994, the Supreme Court while deciding the case of Sarla Dixit date of decision 20.2.1996, did not apply the multiplier indicated in the Second Schedule to the Act. It is his submissions that the multiplier is only a guideline which is to be applied after appreciating the facts and circumstances of the case.
21. As regards, the third submission of the Appellant, for the same purpose Mr. Tyagi relied upon another judgment of the Supreme Court entitled Bijoy Kumar Dugar v. Bidyadhar Dutta and Ors. reported at : AIR2006SC1255 .
22. As regards his last and fourth submission with regard to interest Mr. Tyagi has held his peace for the reason that Mr. Mannie has after some arguments restricted his claim only to the first three heads. The reason being that upon perusing the records with the Court, Mr. Mannie, Learned Counsel for Appellant fairly conceded that at least after 20.4.1992, when Respondent No. 2 had been served, there was no good reason for him to have waited till 13.1.1999 for impleading the Respondent No. 3 i.e. The National Insurance Company Ltd. In these circumstances, Mr. Mannie having conceded that he does not wish to agitate the point with respect to the interest period; the finding with regard to the interest recorded in para 18 of the judgment under appeal is sustained.
23. Having considered the submissions of both the sides, I am of the view that as regards the first issue as to whether the Tribunal ought to have deducted one half (1/2) towards personal expenses, I tend to agree with Learned Counsel for Appellant Mr. Mannie that in the facts and circumstances of the case, a deduction of 1/3 would have sufficed. The reason being the deceased was a young person of 22 years of age. The Tribunal has accepted the fact that he would have earned at least a minimum wage which coupled with the circumstance that he was unmarried person would have largely contributed to the family corpus. In these circumstances, it is easy to envisage, that a person of young age of 22 years who is unmarried would possibly be making a living to lend a helping hand to the family and hence, a large percentage of his income would have been contributed to the family funds. It is easy to visualise that a small portion of income would perhaps be used to defray his expenses upkeep of his person.
24. While, I take the point made by Mr. Tyagi, Learned Counsel for respondent No. 3 that there is no fixed parameter as to what percentage should be deducted on account of personal expenses, however in a vast majority of the cases, including the recent judgment of Supreme Court entitled Kanhaiyalal Kataria and Ors. v. Mukul Chaturvedi and Ors. reported at 2007 ACJ 1972; does seem to indicate that ordinarily the courts restrict the personal expenses to one third (1/3rd). In my view, thereforee, in determining compensation on account of loss of dependency only one third (1/3rd) of the monthly income ought to have been deducted as against one half (1/2).
25. As regards the application of an appropriate multiplier, I am not inclined to agree with the submissions of learned Counsel for respondent No. 3; Mr. Tyagi that once future increase in the monthly income has been taken into account, then the Tribunal could not have taken the assistance of the Second Schedule to the Act in determining as to what the appropriate multiplier would be. The future increase in salary has been taken into account, in the present case, to determine what ought to be an appropriate multiplicand whereas the multiplier is used to determine that capital sum which if invested at a rate of interest appropriate to a stable economy would yield the multiplicand in the form of annual interest over the period the dependency is expected to last. The judgment of the Supreme Court entitled Sarla Dixit and Anr. v. Balwant Yadav and Ors. relied upon by Mr. Tyagi is not in my view an authority for the proposition propounded by him. It is well settled that a judgment is a precedent for what it decides and not what logically follows upon reading of the judgment. In this regard, see the observations of the Supreme Court in the following cases is relevant (i) Bhavnagar University v. Palitana Sugar Mills (P) Ltd and Ors. reported at : AIR2003SC511 . The relevant portion read as follows:.59. A decision, as is well known, is an authority for which it is decided and not what can logically be deduced therefrom. It is also well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision.
(ii) Haryana Financial Corporation and Anr. v. Jagdamba Oil Mills and Anr. reported at : [2002]1SCR621 is also relevant and same read as follows:
19. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of courts are not be read as Euclid's theorems nor as provisions of the statute. These observations must be read in the context in which they appear. Judgments of courts are not be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for Judges to embark upon lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes, their words are not be interpreted as statutes. In London Graving Dock Co Ltd v. Horton (at page 761) Lord Mac Dermot observed: (ALL ER P 14C-D)
The matter cannot, of course, be settled merely by treating the ississima verba of Willes, J., as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished Judge.20. In Home Office v. Dorset Yacht Co. Lord Reid said (at All ER pa 297 g-h),
Lord Atkin's speech...is not to be treated as if it were a statutory definition. It will require qualification in new circumstances'. Megarry, J. in (1971) 1 WLR 1062 observed: 'One must not, of course, construe even a reserved judgment of even Russell, L.J. as if it were an Act of Parliament.' And, in Herrigont v. British Railways Board, Lord Morris Said (All ER P761c)
There is always peril in treating the words of a speech or a judgment as though they were words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case.
21. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.
22. The following words of Lord Dinning in the matter of applying precedents have become locus classicus:
Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide, thereforee, on which side of the line a case falls, the broad resemblance to another case is not all decisive.Precedents should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it.
26. It is not disputed in the instant case by Mr. Tyagi, Learned Counsel for Respondent No. 3 that the age of the deceased at the time when accident occurred was 22 years and that of Appellant number 1, the father was approximately 51 - 52 years. If that be so and if the guidelines provided in the Second Schedule to the Act is applied, then undoubtedly, the multiplier of eleven (11) is relevant and thus ought to have been applied by the Tribunal. In this regard, the observations of the decision of this Court in the case of Rattan Lal Mehta v. Rajender Kapoor and Ors. reported at : 1996IAD(Delhi)552 and those of the Supreme Court in the case of General Manager, Kerala State Road Transport Corpn v. Susamma Thomas which have cited with approval in case Sarla Dixit and Anr. v. Balwant Yadav and Ors. are most apposite. Their Lordships on the choice of the most appropriate multiplier have observed as follows:.However, a scientific basis for arriving at proper multiplicand and multiplier is supplied by a later decision of this Court in the case of General Manager, Kerala State Road Trans. Corpn. v. Susamma Thomas : AIR1994SC1631 . A Division Bench of this Court consisting of M N Venkatachaliah, J. (As His Lordship then was) and G N Ray, J. considered in detail appropriate method for arriving at proper multiplicand and multiplier in fatal accident cases in the light of the decided cases in this country as well as in England & laid down principles for computing compensation in motor vehicle accident cases. In para 8 of the report, the following pertinent observations were made:
There were two methods adopted determination and for calculation compensation in fatal accident actions, the first multiplier mentioned in Davies v. Powell Duffryn Associated Collieries Ltd. (1942) AC 601 and the second in Nance v. British Columbia Electric Railway Co Ltd. (1951) AC 601.
The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalising the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the claimants, whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be head to the fact that ultimately the capital sum should also be consumed up over the period for which the dependency is expected to lost.
27. As observed above, there is no dispute in the instant case that on the date of accident the claimant i.e. Appellant No. 1 was aged 51-52 years while the deceased was aged 22 years. Under these circumstances, age of the Appellant No. 1 has to be taken into account in choosing the appropriate multiplier and for this purpose, there could be no better measure then the Second Schedule to the Act. I am, thereforee, of the view that in ascertaining the compensation for loss of dependency, a more suitable multiplier, in these circumstances, would be 11 as against 9.
28. In these circumstances, the compensation on account of loss of dependency in my opinion, which ought to be awarded to the Appellant is a sum of Rs. 1,36,100/- which is arrived at as follows:
Rs. 1031+(2 x 1031) /2=Rs.1546 - 1/3rd of 1546=Rs. 1031/-Rs. 1031 x 12 = 12372 x 11 = Rs. 1,36,092/-(Rounded Off to Rs. 1,36,100/-)
29. I am now left with the last head; in support of which Mr. Mannie has vehemently submitted that the Tribunal should have granted a little more than Rs. 10,000/- awarded towards love and affection in addition to Rs. 2,000/- towards the funeral expenses; eventhough, in the case cited by him i.e. Daya Arora (Supra) a sum of Rs. 1.00 lac has been granted by this Court. As against Mr. Tyagi has submitted that if the submission of Mr. Mannie on the application of Second Schedule to the Act are to be accepted in determining the multiplier then the same yardstick be applied in determining appropriate compensation for pain and suffering and funeral expenses. He further submits that if that be done the measure provided under para 3 of Second Schedule to the Act ought to be applied. The said paragraph 3 of the Second Schedule provides for 'loss of estate' a sum of Rs. 2,500/- and for the 'funeral expenses' Rs. 2,000/-.
30. After much discussion, on this aspect of the matter, I must happily conclude that there is an agreement between the learned Counsels for both sides, that an additional sum of Rs. 10,000/- would suffice.
31. In view of the discussion, above, the appeal is partly allowed. The appellants are awarded compensation under the heads detailed out below:
i) Loss of Dependency Rs. 1,36,100/- ii) For love, affection & Rs. 22,000/- funeral expenses. Rs. 2,000/-Total Compensation Rs. 1,60,100/-
32. I am informed by the Mr. O P Mannie, Learned Counsel for Appellants that the appellants have received the compensation from the Respondent No. 3 as per Tribunal's order dated 22.07.1999. The additional sum of money due by virtue of judgment passed today i.e. sum of Rs. 64,100/- (Rs. Sixty Four thousand and One hundred only) shall be paid to the Appellants within a period of four weeks with interest at the rate of 12 per cent per annum from 1.7.1996 till realisation. Mr. Mannie does not press either for enhancement of rate of interest or the date from which it is granted.
33. It is made clear keeping in view the age of Appellant No. 1 that 75% of the amount shall be paid to Appellant No. 1; while the balance 25% shall be kept in a fixed deposit for a period of three (3) years to be distributed equally amongst the Appellants. The interest accrued on the fixed deposit shall be paid to the Appellant No. 1. Against sum deposited, no loan or advance shall be given except with the permission of the Tribunal.
34. With the aforesaid discussion, the appeal is disposed of.
35. There shall be no order as to cost.